As we approach the Fourth of July it’s clear that our Democracy is facing a four-alarm fire, and we are the firefighters.
The Biden-Trump debate showed us that Democracy is on fire. Come November we will have a choice between two old men for POTUS. Neither of these men are going to step aside. One, a former president, is a convicted felon, serial liar, would-be autocrat, and sexual predator who lied his way through the debate on everything from inflation, COVID, jobs, foreign policy, January 6, climate change, sex with a porn star, and abortion. The other, a sitting President, struggled to respond to obvious issues and at times looked befuddled.
What makes this a four-alarm fire, however, is the U.S. Supreme Court.
The Supreme Court, with lifetime appointments, is the only branch of our government that has no oversight, no code of ethics, and cannot be challenged for its actions. In other words, it is “above the law” (no pun intended).
The four-alarm fire started with the Court overturning Roe v. Wade. A year after the reversal nearly 22 million women, almost 1in 3, found themselves living in states where abortion was unavailable or severely restricted. Women throughout the country are threatened by a national abortion ban if Donald Trump is re-elected president. The four-alarm nature of this decision should be understood as the Court overruling a 50-year precedent without relying on stare decisis.
Stare decisis (honoring and relying on past precedents) distinguishes law from politics. But in Dobbs v. Jackson, the 6-3 conservative majority rejected its own established pro-abortion precedents of Roe and Parenthood of Southeastern Pennsylvania with a “might makes right” argument. Justice Alito wrote: “Starting with the proposition that stare decisis is not an inexorable command, and is at its weakest when we interpret the Constitution, in matters of constitutional interpretationwe place a high value on having the matter settled right, such that in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.”
All the MAGA majority could rely on, in ignoring its precedents, was that the Constitution does not mention the right of abortion (ironic in that the Court dismissed the 14th Amendment Constitutional provision prohibiting insurrectionists running for office by allowing Trump on the Colorado ballot).
Adding fuel to the fire, Dobbs‘s rejection of the right to abortion was a religious not a legal decision. This was raised by Justice Sotomayor during oral arguments. She asked Mississippi’s lawyer: “So when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”
The four-alarm nature of this inferno was recently reinforced by SCOTUS reversing its 1984 precedent Chevron v. Natural Resources Defense Council, which usurped the existing ability of administrative agencies to protect health and safety and placed it in the judiciary.
Federal agencies impact every aspect of daily life, from the food we eat, the cars we drive, the air we breathe, and the water we drink. In doing this they rely on nonpartisan expertise.
The Supreme Court opinion Chevron v. Natural Resources Defense Council ensured that expertise employed by federal agencies was used to protect our health and safety whenfederal statutes are vague and need interpretation. Chevron unanimously, and correctly, held that judges should play a limited deferential role to the expertise employed in agencies like the Environmental Protection Agency (EPA), Nuclear Regulatory Commission (NRC), Securities and Exchange Commission (SEC), Federal Trade Commission (FTC), Food and Drug Administration (FDA) et al.
Chief Justice Roberts and the 6-3 conservative majority overruled Chevron without relying on stare decisis, holding that: “The reviewing court — not the agency whose action it reviews–is to decide all relevant questions of law and interpret … statutory provisions.”
The danger of this decision to our right to be protected by our government was stated by Justice Kagan in her dissent: “Agencies have expertise; courts do not … . Some regulations demand a detailed understanding of complex and interdependent regulatory programs.” As she put it: “How many judges would feel confident defining what is an alpha amino acid polymer but the Food and Drug Administration has scores of scientists on staff who can think intelligently about it … and arrive at a sensible answer.”
And, on July 1st the High Court, by waiting until the end of its term to rule on Trump’s immunity claims, ensured his J6 trial could not take place before November; and then threw gasoline on an already raging fire by granting Trump and future presidents unprecedented immunities from criminal acts.
In Trump v. United States, the same 6-3 conservative majority held that Trump is presumptively immune from criminal liability for his official acts and absolutely immune from “core” official acts (actions within the president’s “use of official power”). This includes Trump’s attempt to use the Justice Department to obstruct the results of the 2020 election.
The ruling placed Trump, and future presidents, above the law for “core” official acts, while requiring trial courts to factually distinguish between official and un-official acts before criminal indictments of ex-presidents can proceed.
Besides this standard being vague, there is no mention of presidential immunity in the Constitution. Indeed, as every school child knows, the American Revolution was fought to ensure we would not be governed by monarchs, above the law.
To say that SCOTUS has not subjected the country to a four alarm fire is naïve. What the court has done is exactly what Steve Bannon, ironically going to jail on July 1, began arguing for in 2015: “the destruction of the administrative state,” or colloquially the “deep state” as Trump likes to refer to it.
Our Supreme Court, by abandoning the legal process of relying on past precedents, has transformed itself into a political body furthering a right-wing agenda by reversing its precedents to do so. This aberrant behavior is untouchable by law or process, but not by the voters. We are the firefighters!
Predictably there will be at least two Supreme Court appointments made during the next presidency. This Fourth of July will be the most contentious in modern history. It’s critical for those of us who understand that Democracy is on fire and that the only way to put out this blaze is through our votes on Tuesday, November 5, 2024.